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A pilot scheme between eBay and the Swiss Federal Office for Cultural Affairs

October 14, 2009 – It is a well-known problem. Anyone can turn things he doesn't want any more into cash on eBay. In the last years, eBay has revolutionized the trade between seller and buyer and abolished the intermediary. What essentially is in the interest of the private user can be abused very easily when the seller offers goods which are illegal on the official market.

The danger of the illicit traffic in cultural propertyEspecially the many lots of uncleaned coins and the small dirty metal objects make archaeologists all over the world yell. Each time they see in their mind's eye a deep hole in the ground caused by searchers using detectors. No wonder, then, that they want to do something against that. One of their victims was Sylvio Müller. His case made law history in Germany. After work, he cleaned coin lots which he bought on eBay to re-sell the coins for little money one by one afterwards. Hessian police initiated an investigation proceeding on dealing in stolen goods in 711 cases. After his being reported had prompted 347 investigation proceedings, which in some cases involved house searches and restraining of entire coin collections, he was acquitted of the charge on September 21st, 2009 - on prosecution's request, as a matter of fact. The process yielded the result that in Germany a proof of origin isn't necessary to buy and sell coins - and that holds true for eBay as well.

The Swiss solutionIn Switzerland, this problem was approached differently. It was made abundantly clear to eBay Germany and Switzerland that the company wasn't regarded as a platform but rather as a trader. As such eBay was obliged to take special care in the trade of cultural property. If eBay neglected this duty to take care, investigation proceedings, lawsuit and high fines would be inevitable. EBay doesn't like mischief like this at all. Hence, it accepted the serious conditions which, in matters of protection of cultural property, led to a company policy that has nothing to do with German, Austrian or Swiss law. Let's repeat it once again: on eBay, the proof of origin is a purely private condition forced by eBay on its sellers. As host of the platform, eBay has the right to do so. Without getting into legal trouble it could just as well accept only sellers between 45 and 50 years of age whose last name start with a -w-. The Swiss Federal Office for Cultural Affairs didn't leave the observation to eBay - eBay, for that matter, doesn't seem willing to hire an expert on cultural property - but assigned the task to the Conference of Canton Archaeologists. They in turn charged an experienced archaeologist with the job - she had taken a doctoral degree in Archaeology of the Roman Provinces and as such she at least knew the spectrum of the Roman coin finds. She conducted a monitoring for three months - meaning that she had a close look at all recent sales on the computer. Everything she didn't like she directly reported to eBay who in turn removed the object from the auction without any further control or the chance of appeal - when contacted, eBay responded quite friendly: "On request of the Federal Office for Cultural Affairs, Federal Department of Internal Affairs (FDI), Hallwylstr. 15, CH-3003 Bern, we have terminated your offers... If you think the removal of your offers a mistake or if you have any further questions, please contact the Federal Office for Cultural Affairs directly..."

Excitement about an alleged success

On November 4th, 2009, the FOC cheered in a press release: "The three-month pilot scheme between the Federal Office for Cultural Affairs (FOC) and the platform for online auctions, eBay, has proven successful in controlling the offers of antique cultural property: the trade in presumably illegal archaeological antiquities has clearly decreased in the controlled categories."It was conveniently ignored that not only trade in illegal cultural property but trade in its entirety had decreased since no seller could meet the requirements the private company eBay had established. Rather, the project was prolonged for another six months.

Blunders in abundance Meanwhile, more and more collectors and dealers revolted. When controlling and monitoring, the archaeologist, who felt able to tell illegal cultural property from legal goods just by looking at the photographs and the accompanying text, caught a great deal of entirely legal coins from collections - for some of them even official bills existed. "Indiacoin" was a case for the press. His sale had been deleted although he said to have a bill which clearly stated that this kind of coins was delivered from India legally because they were admitted for trade. Other cases became known where common objects were involved which to some extent were offered for sale by known coin dealers.

Lack of transparency and no chance to appeal That a private company let itself be controlled by an official body leaves a sour taste: buyers were aggrieved without any control, without reasons stated and, of course, without a chance to appeal - on violation of the rules of the house (which couldn't be followed in any case) they received an endorsement; if they collected one endorsement too many they ran the risk of losing their eBay identity. That would mean a loss of reputation since eBay carefully collects positive feedback, count it and advertise with it their sellers' credibility.

A Pyrrhic victoryEven though the Swiss Federal Office for Cultural Affairs may think to have administered a severe blow to the illicit trade in cultural property, the success of this initiative is highly questionable. Countless eBay users see themselves punished without good reason. The state's right to protect its cultural property wasn't regarded as such but as nit-picking victimization anybody could experience without regard to individual circumstances. With this procedure, the difference between a criminal act and legal trade is blurred. To what end that may lead can be illustrated by history:In the United States of America, on January 16th, 1920, the prohibition of alcoholic beverages was enacted. Their production, their import and export as well as their consumption were declared punishable offenses. This regulation notwithstanding, many Americans continued to drink alcohol without the slightest sense of guilt. Rather, they saw the official persecution as a kind of game; those breaking the law by supplying alcohol were protected with a twinkle in one's eye. We don't have to explain in detail that this attitude soon let to intolerable conditions. The prohibition had to be withdrawn to ensure the law's credibility.

Cultural property would be protected best if broad sections of the population took care. To that end, new reasons are needed as well as new approaches and the cooperation of all parties involved. Perhaps the Swiss Federal Office for Cultural Affairs visits England some time or invites a member of the Portable Antiquities Scheme to exchange experiences. In doing so, it would soon realize that there are other possibilities to protect cultural property than repression and coercive measures.